¶1concurring in part and dissenting in part:
¶2I agree with the majority that the obvious mistake of the legislature in providing a more severe penalty for possession of a schedule IV controlled substance in section 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 5614, par. 1402(b)) than is provided for the delivery of a similar controlled substance under section 401(e) (Ill. Rev. Stat. 1977, ch. 5614, par. 1401(e)) renders the penalty provided for the possession of a schedule IV controlled substance invalid. I do not agree, however, that the defendants charged with the offense of possession of a schedule IV controlled substance should be discharged.
¶3The legislature has the inherent power, within constitutional limits, to define conduct which shall constitute a criminal offense and to fix the punishment for that conduct. (People ex rel. Kubala v. Kinney (1962), 25 Ill. 2d 491, 492; People v. Vraniak (1955), 5 Ill. 2d 384, 390.) The legislature has seen fit to make the possession of a schedule IV controlled substance a criminal offense. The majority has not found this determination to violate any constitutional prohibitions. It is only the penalty that the legislature has provided for this offense which the majority finds violative of the Constitution. The invalidity stems not from an equal protection violation or a violation of the proscription as to cruel and unusual punishment. But, as the majority notes, the invalidity stems from the fact that possession is a lesser included offense in the offense of delivery and therefore the punishment for possession should not be greater than that for delivery. The opinion of the court finds no constitutional invalidity as to schedule II or schedule III controlled substances because the penalties provided for delivery of those substances are either equal to or greater than the penalty provided for possession.
¶4Since possession of a schedule IV controlled substance is a lesser included offense in the offense of delivery of a schedule IV controlled substance, I would reverse the orders dismissing the charges of possession of a schedule IV controlled substance and remand the causes to the trial courts with directions that, if convicted, the defendants be sentenced under the penalty provisions provided for delivery of a schedule IV controlled substance.
¶5This court has long held that the holding of a part of an act unconstitutional does not necessarily render other parts of the same act invalid, if the unconstitutional part can be severed without affecting the remaining portions. (People ex rel. Bradley v. Illinois State Reformatory (1894), 148 Ill. 413, 425; People v. O’Brien (1916), 273 Ill. 485, 488; People v. Kennedy (1937), 367 Ill. 236, 240; People v. Nicks (1976), 62 Ill. 2d 350, 355.) The legislature has declared possession of a schedule IV controlled substance to be a criminal offense. There is no constitutional infirmity contained in such a declaration. The invalid penalty provision provided for such an offense does not affect the validity of that portion of the statute defining the offense. In People v. Natoli (1979), 70 Ill. App. 3d 131, 139, the case which the courts below followed in discharging the defendants, the appellate court stated that there is no right not to be sentenced for one’s crime. I agree and would hold that when a penalty provided for an offense is held to be invalid and there remains a statute under which one convicted of such an offense may be constitutionally sentenced, the conviction should not be reversed. The fact that the defendant may not have been charged under that particular statute has not been held to be a bar to such procedure.
¶6In People v. Sinclair (1972), 387 Mich. 91, 194 N.W.2d 878, the Supreme Court of Michigan held invalid the penalties for possession and sale of marijuana. However, the majority of the court held that the defendant should not be discharged and stated that its decision would not mean that persons arrested for sale or possession of marijuana could not be prosecuted under the laws of the State of Michigan. The majority held that until the effective date of the new act providing less severe penalties for possession and sale of marijuana, prosecution must be under the penalty provisions relating to hallucinogenic drugs which the court found more closely resembled the properties of marijuana. People v. Sinclair (1972), 387 Mich. 91, 115, 194 N.W.2d 878.
¶7In Roberts v. Louisiana (1976), 428 U.S. 325, 49 L. Ed. 2d 974, 96 S. Ct. 3001, the Supreme Court held invalid Louisiana’s mandatory death penalty statute relating to first degree murder and remanded the cause to the Supreme Court of Louisiana. Upon remand, the Louisiana Supreme Court, following its decision in State v. Jenkins (La. 1976), 340 So. 2d 157, set aside the death penalty and stated that the appropriate penalty is the most severe constitutional penalty established by the legislature for criminal homicide at the time the offense was committed. (State v. Roberts (La. 1976), 340 So. 2d 263.) In Jenkins, the court noted that previously, when that court had been required to resolve the question of sentencing a defendant validly convicted but unconsitutionally sentenced to death, the court had substituted life imprisonment as the appropriate sentence. However, at the time of the enactment of the mandatory death penalty statute for first degree murder, the legislature created the offense of second degree murder for which the penalty was more severe than a life imprisonment sentence. The new penalty for second degree murder contained certain restrictions on parole. The court found that to follow its previous practice and impose a life sentence for first degree murder would be imposing a lesser penalty for first degree murder than was required for second degree murder. The court thus held that the most severe constitutional penalty for homicide would be the appropriate penalty for first degree murder.
¶8In People v. Boyer (1974), 24 Ill. App. 3d 671, rev’d on other grounds (1976), 63 Ill. 2d 433, the appellate court held the aggravated incest penalty invalid. Under the statute, incest was declared to be a Class 3 felony and aggravated incest was a Class 2 felony. Although the court held that penalty for aggravated incest invalid, it affirmed defendant’s conviction for aggravated incest as a Class 3 felony instead of a Class 2 felony as provided by statute. In the cases above cited the defendants were all sentenced under penalty provisions of statutes with which they had not been charged or convicted of violating.
¶9The majority opinion holds the penalty provisions for possession of schedule II and schedule III controlled substances are not invalid because they are equal to or less than those provided for delivery of similar substances. There would thus be no due process violation involved in sentencing one convicted of possession of a schedule IV controlled substance under the penalty provision provided for the delivery of such a substance. Possession is a lesser offense included within the offense of delivery, and the sentencing judge could consider the relative seriousness of the offense in fixing the sentence within the range of the penalties provided. The legislature has declared possession of a controlled substance to be a felony, and the least serious penalty provided for a felony conviction is that provided for a Class 4 felony. Ill. Rev. Stat. 1977, ch. 38, par. 1005-5-l(b).
¶10In keeping with my belief that only the penalty provided for possession of a schedule IV controlled substance is invalid, I would hold that defendant Bradley in cause No. 52262, defendant Dalzotto in cause No. 52411, and defendant Olsen in cause No. 52814, lacked standing to challenge the validity of the penalty provided for possession of a schedule IV controlled substance. No sentence had been imposed on these defendants. There would be no due process violation until a more severe sentence would be imposed for possession than for delivery. Since the charges against these defendants were dismissed prior to sentences being imposed, they had no standing to challenge the penalty provisions of the statute.
¶11In summary, the legislature had the authority to define the conduct which constituted a criminal offense. It declared possession of a schedule IV controlled substance to be a criminal offense. The defendants were lawfully charged with possession of a schedule IV controlled substance. The invalid provision of section 402(b) of the Act, as it relates to possession of a schedule IV controlled substance, has never been applied. I would therefore vacate the orders of the trial courts dismissing the charges of possession of a schedule IV controlled substance against defendants Bradley, Dalzotto and Olsen, and remand the causes to the trial courts with directions to sentence Dalzotto, who has been convicted of possession of a schedule IV controlled substance, under the penalty provision provided for delivery of such a substance. The charges against Bradley and Olsen were dismissed before trial. I would therefore direct the trial courts to proceed to trial on the charges against these defendants and, if convicted of possession of a schedule IV controlled substance, to sentence the convicted defendant under the penalty provision provided for delivery of a similar substance. A person has no right not to be sentenced for the crime he has committed if there exists a valid penalty provision which can constitutionally be applied to his offense.